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Inquest funding reforms to ensure equality of arms

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Bereaved families should be entitled to public funding to cover legal costs at inquests when public authorities are legally represented, a House of Commons report has recommended.

The Justice Committee made the recommendation after it heard that there was an ‘inequality of arms’ in some coroner’s courts hearings between families and public bodies, such as hospital trusts.

It asked the Ministry of Justice for the funding to be put in place by October 2021.

The issue was highlighted in the first Chief Coroner’s annual report 2015-16 when Sir Peter Thornton said it was unfair or may appear unfair that police, ambulance and prison service may be represented but not the bereaved families.

In evidence for the most recent report, the Coroner’s Society also described this inequality of arms in relation to a hospital trust.

Shoosmiths believes that the existing system creates an unlevel playing field, with many bereaved families going unrepresented at such a vulnerable time, while the public body has its legal representation paid for from government funds.

Sharon Banga, a specialist medical negligence solicitor based in Shoosmiths Birmingham office, welcomed the new recommendations which would reduce the likelihood of such unfairness.

She said: “This change, if implemented, will be vital to those who to date may have been unable to adequately engage in the inquest process and have effectively been placed at a disadvantage due to funding restrictions.”

Shoosmiths was recently representing a client whose mother had died but the legal case against the hospital settled before the inquest took place. The client was not entitled to legal aid, but the hospital trust had funding to enable legal representation.

Sharon Banga said: “This is just one important example of bereaved families having to engage in what is already a difficult process feeling that they have been let down by the system".

Recommendation 103 of the report, The Coroner Service says: “Bereaved people should not be put through the difficult and time-consuming process of meeting the exceptional cases requirements and the means test for legal aid where public authorities are legally represented at public expense at the inquest into the death of their loved one.”

The report also said it was ‘unacceptable’ that the people who have been bereaved are not entitled to automatic non-means tested legal aid at inquests into multiple deaths following a public disaster.

It recommended: “These inquests are complex and ‘equality of arms’ is a fundamental requirement to make sure those who have been bereaved can participate fully. The Ministry of Justice should introduce an automatic entitlement to non-means tested legal aid for legal representation for bereaved people at inquests into mass fatalities.”

Shoosmiths said they were both only recommendations – which would have to be acted on by the Government. Sharon Banga said: “I hope that as many of the recommendations as possible are implemented.”

The report also recommended that the formal duty of candour - the duty to be open and honest with patients or their families when something goes wrong - should formally extend to the Coroners Service.

This includes the ability for the coronial service to monitor risks identified by coroners and juries at inquests and to provide follow up with key regulators including the Care Quality Commission.

A suggestion has been made to set up a new Coroner Service Inspectorate to report publicly where insufficient action has been promised or implemented by an organisation at fault after an inquest.

The report provides the power for any potential recommendations made in ‘Prevention of Future Death reports’ produced by the coroner to be followed up; a change which could significantly improve patient safety as no mechanism currently exists.

The Justice Committee is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies as well as the expenditure of the Attorney General’s Office, the Treasury Solicitor’s Department, the Crown Prosecution Service and the Serious Fraud Office.

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